For affirmance -- Chief Justice Hughes and Justices Jacobs, Mountain, Sullivan, Pashman and Clifford. For reversal -- None. The opinion of the Court was delivered by Mountain, J.
Defendant and one Michael Watts were indicted for violating N.J.S.A. 2A:115-1 in that they committed acts of private lewdness with a certain young lady. The statute under which the indictments were laid reads as follows:
Any person who commits open lewdness or a notorious act of public indecency, grossly scandalous and tending to debauch the morals and manners of the people, or in private commits an act of lewdness or carnal indecency with another, grossly scandalous and tending to debauch the morals and manners of the people, is guilty of a misdemeanor. [ N.J.S.A. 2A:115-1]
It was charged that one or both of the co-defendants had unbuttoned the young lady's dress and had placed his hands on
her breasts, thighs and legs. Defendant Dorsey was convicted and Watts was acquitted.
Watts and Dorsey were engaged in soliciting orders for professional photographs to be taken in the home. They had been referred to the young lady by a friend. Upon the day in question, after being admitted to her apartment and following some conversation about the proposed photographs, she was asked whether she had ever modeled. She admitted that she had. According to her testimony, Watts, commenting upon what a fine figure she had for modeling, placed his hands under her dress on her upper thigh. As she moved away, Dorsey followed her, unbuttoned her dress and placed his hands on her breasts, abdomen and thighs. She ran into another room and both men departed. The defendants, at the trial, admitted their presence in the apartment but denied that either of them had touched the complaining witness. During the course of the trial the judge removed any charge of "carnal indecency" from the case, which left solely the issue of private lewdness to be submitted to the jury.
The Appellate Division reversed the conviction, holding that while the acts committed were of course reprehensible and might well have constituted the basis for a charge of assault and battery or possibly assault with intent to commit rape, they did not support a conviction of the statutory crime of private lewdness.
The crime of private lewdness is difficult to define. Originally the statute embraced only public and open lewdness. An Act for the Punishment of Crimes passed March 18, 1796 first condemned such conduct. Paterson, § 16, p. 210. Subsequent revisions of our criminal statutes left the original language substantially unchanged. Compare L. 1898, c. 235, § 51, p. 808. These enactments were merely declaratory of the common law, which looked upon open and public indecency as a common nuisance, injurious to public morals. State v. Brenner, 132 N.J.L. 607, 609 (E. & A. 1944). Not until 1906 was the statute amended to include carnal indecency and private lewdness. L. 1906, c. 71, p. 101. Thenceforth
the commission, in private, of an act of lewdness or carnal indecency, with another, if grossly scandalous and tending to debauch the morals and manners of the people, was a misdemeanor. But nothing in the act made clear precisely what the Legislature intended to encompass, nor exactly what was meant by private lewdness. Lewdness has been described as conduct of a lustful, lecherous, lascivious or libidinous nature. This definition is pleasantly alliterative but not especially revealing. Our former Court of Errors and Appeals, in considering this statute, has shed some light upon its meaning by indicating certain things it does not include.
Lewdness, within the concept of the statute, imports some degree of sexual aberration or impurity. It denotes gross and wanton indecency in the sexual relations. Blackstone defines "open and notorious lewdness" at common law as "some grossly scandalous and public indecency." 4 Blk. Com. 64. Neither adultery nor fornication is a criminal offense at common law, unless by the manner of its commission it constitutes a public nuisance. State v. Lash, 16 N.J.L. 380; 4 Blk. Com. 64; 1 Am. Jur. 683. As used in a statute rendering "open" lewdness criminal, the term has been defined as "the irregular indulgence of lust, whether public or private." Commonwealth v. Wardell, 128 Mass. 52. The amendment of 1906, supra, has reference to grossly scandalous lascivious acts and behavior, in private, tending to debauch the morals and manners of the people. Plainly, this category does not comprehend either adultery or fornication, for these transgressions against chastity and sexual decency had long since been denounced as misdemeanors; and there is no suggestion of a purpose thus to reclassify them. [citing statutes] It has long been the legislative policy to deal with adultery, fornication, and lewdness by companion provisions under the general head of crimes against public morals and the institution of marriage. We do not entertain the view, seemingly expressed by the Supreme Court in State v. Michalis, 99 N.J.L. 31 that if the act in question has a tendency to debauch the morals and manners of the people when committed in public, then it is lewdness within the intendment of the statute when done in private. [ State v. Brenner, supra, at 610-611]
This decision thus holds that the statute, N.J.S.A. 2A:115-1, does not include acts of adultery or fornication, and that conduct will not necessarily amount to private lewdness merely ...